THE HISTORY WOMEN’S PROPERTY RIGHTS IN THE OREGON TERRITORY

Anyssa M. NeustelEarly American Nation 1789-1865

Dr. HinkDecember 15, 2016

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In 1852 a young woman by the name of Abigail Scott Duniway arrived in the Oregon

Territory, she had lost both her mother and brother along the trail, finding herself the sole

survivor in her family.1 She would later become married to a rancher, who had been living in the

territory already. Duniway found herself having more agency than her contemporaries and

influence later in her life on the women’s suffrage movement in the West.2 Undoubtedly, the

young Duniway who came hundreds of miles did not originally see herself as an important

historical figure in women’s rights in the west. Her work with Susan B. Anthony and the

publishing of her own newspaper, the New Northwest is incomparable to many of the women of

the Oregon Territory during the period.3 While Duniway’s story is fascinating due to its classic

rags to riches theme and extraordinary circumstances, the variables which allowed for

Duniway’s success helped other women begin to take advantage of their new found legal

abilities and rights. These opportunities would present themselves through Oregon’s allowance

of property ownership. The laws of the 1800s in Oregon created an environment indicative to

forming and working to nourish a more equal society. The Oregon Trail brought hardships and

change for many people who had decided to traverse it, one of the trails side effects would be the

gradual increase of rights for women in Oregon.

There were many men and women who traversed from Independence, Missouri to the

Oregon Territory in hopes for a new and better life on the Western frontier. However, these

people would be met with immense trials which would test not only their perseverance, but the

very troubles which pursued them. This was part of what made the women in Oregon different

from Eastern women. Annie Belshaw, a young woman who came to the Oregon Territory

1 Lake, Randall A. "She Flies With Her Own Wings." She Flies With Her Own Wings. February 4, 2015. Accessed October 5, 2016. http://asduniway.org/

2 Ibid.3 Ibid.

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recalled her difficult journey to the Northwest.4 In her diary she wrote that her mother gave birth

to a baby girl whom they named Gertrude Columbia, the baby was named after the Columbia

River where she had been born.5 Within two weeks Annie Belshaw and her family had to bury

the child.6 Annie’s aunt wrote of her and the family’s despair over the tragedy and formidable

circumstances which they were entering writing: “[I] left my home quiet little home… [for] this

dreary land of solitude.”7 While the land was harsh for the new settlers in the area another

woman named Mary Colby wrote to her siblings back home saying: “I do not wish to bray but I

think we ere long be as well off… as some of the family think they are,” insinuating that once

she and her husband had harvested their crops, they would be better off than if they had stayed in

Ohio.8 For women, Oregon’s land would be much more than fertile soil, it was an emergence of

legal rights tied to property by men and women.

Before the Oregon Territory had become heavily settled or a state, its main residents were

traders. These individuals traded their local goods and natural resources with various trading

companies is the region.9 Records from the traders in Oregon, indicates that some of the most

lucrative trading goods for these men was with the Northwest Trading Company, one log

includes a number of beaver, muskrat, and both land and sea otter furs.10 Since the United States

4 Schlissel, Lillian. Women’s Diaries of the Westward Journey, (New York: Schocken Books Inc., 1982). 108.

5 Schlissel, Lillian. Women’s Diaries of the Westward Journey,. 108-109.6 Ibid.7 Ibid. 108-109.8 Schlissel, Lillian. Women’s Diaries of the Westward Journey, 157.9 “MtMan-List: Flour - USA - XMission." Mountain Men and the Fur Trade. Accessed

October 10, 2016. https://www.bing.com/cr?IG=A804B0BA05954FCB89E5489714AF0D4F&CID=19B78AC6B8E369840771832DB9D26837&rd=1&h=l3B6uzf0nFuH8ySy8AbIh-Wityu4J9zli57q7ILhdhI&v=1&r=https://user.xmission.com/pub/lists/hist_text/archive/hist_text.200011&p=DevEx,5038.1.

10 “MtMan-List: Flour - USA - XMission." Mountain Men and the Fur Trade. Accessed October 10, 2016. https://www.bing.com/cr?IG=A804B0BA05954FCB89E5489714AF0D4F&CID=19B78AC6B8E369840771832DB9D268

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had gained the Oregon Territory through the Louisiana Purchase (1803) there was good reason to

believe that the new land should be inhabited and used for its natural resources. For this very

reason in 1829 a school teacher named Jotham Meeker, wrote to Congress engaging it to look

into passing a piece of legislation which would encourage settlement in the west. He argues that

such an act would not only benefit the people moving to Oregon, but it would also benefit the

United States through three specific ways firstly, if they settled the land and used it the

production would better the economy.11 He continues his argument saying, that if there were

more settlement in Oregon then the United States would also benefit from a more lucrative trade

and better relations with the “Indians” in the area.12 In time, the United States’ Congress decided

that passing such legislation would be advantageous for the nation and worked to create such a

law, but that would not happen for another decade and a half.

While all of this was occurring, the Oregon Trail had already begun. Migrants packed

their belongings and livestock in wagons headed and west between 1836 and the late 1860s. The

concept of moving west was typically romanticized by the famous notion of Manifest Destiny,

but it was greatly overshadowed by frequent treacheries and full of uncertainty. Many diaries of

the pioneer women who trekked west recorded the number of graves they passed each day; there

was no way for pioneers to escape death or destruction once they had selected their victims. The

news of the awful conditions of the trail was told throughout the entire United States and its

territories. Sophia Huldah Buckman Seely, who had already settled in Oregon, recorded in one

of her letters to her father: “I heard it estimated that from the Misouri river to Fort Larimy there

37&rd=1&h=l3B6uzf0nFuH8ySy8AbIh-Wityu4J9zli57q7ILhdhI&v=1&r=https://user.xmission.com/pub/lists/hist_text/archive/hist_text.200011&p=DevEx,5038.1.

11 Spence, Clark C. The American West: A Sourcebook. New York: Crowell, 1966. 83-85.12 Spence, Clark C. The American West: A Sourcebook. New York: Crowell, 1966. 83-85.

4

was a grave every half mile.”13 Even Oregon’s famous Abigail Scott Duniway could not remain

untouched by the trail’s formidable grip. Duniway wrote in her diary: “We have passed 7

new graves... passed a place, where some folks were busied consigning to its last

resting place the remains of a young man who had (died) with the measles...”14

Both of these women understood that death on the trail did not discriminate.

As the years went by and the population of Oregon slowly grew, a provisional

government was instated in 1845.15 The provisional government formed its own constitution to

govern the territory while it was in the process of becoming a state. Under the provisional

government’s constitution when it spoke of land it referred to those who possessed land as

“individuals” not male or female.16 After the government had been put into place, Samuel

Thurston was chosen to be the first Oregon Territorial delegate to Congress.17 His influences

would later be important for women and their ownership of property in Oregon’s history.18

Thurston would represent the Oregon Territory in Congress. By 1846 the Oregon border dispute

would become a heavy topic for people in the area, and finally the British government allowed

for the United States to have the territory which is modern day Washington State.19 Once

Oregon had been admitted as a state on February 14, 1859 the border between the Washington

13 Flora, Stephanie. "Emigrant's Diaries and Journals." Emigrant's Diaries and Journals. Accessed October 10, 2016. http://www.oregonpioneers.com/diaries.htm.

14 "Journal of a Trip to Oregon By Abigail Jane Scott INTRODUCTION." Journal of a Trip to Oregon By Abigail Jane Scott INTRODUCTION. Accessed October 10, 2016. http://cateweb.uoregon.edu/duniway/notes/DiaryProof1.html.

15 Riddle, Margaret. "Thurston, Samuel (1816-1851)." HistoryLink.org. July 25, 2010. Accessed December 14, 2016. http://www.historylink.org/File/9487.

16 Chused, Richard. "The Oregon Donation Act of 1850 and Nineteenth Century Federal Married Women's Property Law." Law and History Review vol. 2, no. 1 (1984): 44-78. Accessed October 5, 2016. doi:10.2307/743910.57. 45

17 Riddle, Margaret. "HistoryLink.org." Donation Land Claim Act, Spur to American Settlement of Oregon Territory, Takes Effect on September 27, 1850. - HistoryLink.org. August 09, 2010. Accessed December 14, 2016. http://www.historylink.org/File/9501.18 Ibid.

19 Ibid.

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Territory and the new state of Oregon would be the natural landmark, the Columbia River, and

the state constitution became law.20

The Oregon Territory’s entrance into the Union in 1859, secured the position of Oregon’s

State Constitution in the legality of women’s ownership of property. One of the most substantial

and important components of the constitution comes from Article II Sections No. 2 and 6.

Article II Section 2 explains that “every white male citizen of the United States, of the age 21

years, and upwards… shall be entitled to vote at all elections authorized by law.”21 Later in

section 6 the constitution states “No Negro, Chinaman, or Mulatto shall have the right of

suffrage.”22 The age, race, and gender requirement was a norm in the United States of America at

that time. One of the most interesting facets of these two sections is, nowhere does it verbally

exclude women from the right to vote. In fact, women are omitted from the sections on suffrage

entirely. Certainly, if there had been as much hostility toward women as there had been toward

individuals who were “Negro, Chinaman, or Mulatto,” then they would have been included in

section 6 along with others who were considered less acceptable in the public eye.23

While sections 2 and 6 are important, the most vital portion of the Constitution for this

research is Article XV Section 5. The article is listed as “Miscellaneous” under the constitution,

while the overarching article covers a variety of topics, its most interesting and important subject

20 Ibid.21 "Oregon Blue Book: Original 1857 Constitution of Oregon: Suffrage and Elections."

Oregon Blue Book: Original 1857 Constitution of Oregon: Suffrage and Elections. Accessed October 5, 2016. http://bluebook.state.or.us/state/constitution/orig/article_II_01.htm.

22 "Oregon Blue Book: Original 1857 Constitution of Oregon: Suffrage and Elections." Oregon Blue Book: Original 1857 Constitution of Oregon: Suffrage and Elections. Accessed October 5, 2016. http://bluebook.state.or.us/state/constitution/orig/article_II_03.htm

23 Ibid.

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is women’s ability to possess property according to their own will—not their husbands.24 Section

5 states:

“The property and pecuniary rights of every married woman, at the time of marriage or afterwards, acquired by gift, devise, or inheritance shall not be subjected to the debts, or contracts of the husband; and laws shall be passed providing for the registration of the wife’s separate property.”25

This law was an opening for the Oregon Donation Land Act of 1850 to secure women’s

property as their own in future Supreme Court rulings. Without Article XV the case for

women’s property rights in the west would not stand, and the proceeding court cases would not

have incurred.

As Oregon’s Territorial delegate, Thurston, could propose ideas and participate in

discussion in Congress. Thurston’s personal convictions toward women can be seen in his

political views and correspondence with his wife. He wrote to his wife back west on multiple

occasions encouraging her to continue the hard work at home.26 Thurston wrote in support of

women’s education and left his wife in charge of all of the finances in the home, and his

daughter’s education.27 He aligned himself in a more liberal political view point; he encouraged

“female education in science and literary requirements.”28 Because of Thurston’s obvious

tendencies to lean toward giving women more privileges than what others may have allowed,

this carried over into the piece of legislation he supported in Congress entitled “The Donation

24"Oregon Blue Book: Original 1857 Constitution of Oregon: Suffrage and Elections." Oregon Blue Book: Original 1857 Constitution of Oregon: Suffrage and Elections. Accessed October 5, 2016. http://bluebook.state.or.us/state/constitution/orig/article_XV_02.htm

25Ibid.26 Chused, Richard. "The Oregon Donation Act of 1850 and Nineteenth Century Federal

Married Women's Property Law." Law and History Review vol. 2, no. 1 (1984): 44-78. Accessed October 5, 2016. doi:10.2307/743910.57., 70-71.

27 Ibid. 70.28 Ibid.,69-70

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Land Act” of 1850.29 This Act would allow women a new kind of agency, which they had not

previously had in the state, let alone the nation as a whole. The passing of the Act by Congress

September 27, 1850 when combined with the Oregon State Constitution would alter women’s

rights in the area for a period of time, while also opening the door for precedent through the

Oregon state constitution and Supreme Court.30

The Oregon Donation Land Act had several points which were promised on condition to

male and female settlers in the Oregon Territory between 1850 and 1855. If a male who was

eighteen years of age or older and had wished to apply for land under the Land Act, he could

travel to Oregon City and sign a document which granted him 320 acres of land in his name.31

The land given under the act was expected to be lived on and cultivated within four years for it to

remain in the individual’s possession.32 But, the Land Act did not only apply to white males who

were settling in the region. Instead, married couples could accumulate together up to 640 acres

of land if they traveled to Oregon City and claimed land.33 Each spouse was given a piece of

paper to sign their name to, giving each one 320 acres of land, split between the two of them.34

This meant that the wife legally possessed 320 acres of her own land and her husband had the

same amount for himself. The act also allowed the “half-breed” Indians in the territory to

acquire land as long as it coincided with the marriage, gender, and age limit.35 The Donation

Land Act was similar to the Homestead Act of 1862, paving the way for more government

29 Riddle, Margaret. "HistoryLink.org." Donation Land Claim Act, Spur to American Settlement of Oregon Territory, Takes Effect on September 27, 1850. - HistoryLink.org. August 09, 2010. Accessed December 14, 2016. http://www.historylink.org/File/9501.30

31 Ibid.32 Ibid33 Ibid.34 Ibid.35 Ibid.

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granted land.36 Under the Oregon State Constitution’s Article XV Section 5 this meant that the

property and the registration of anything that was a woman’s, was her own until she decided to

dispose of her property. Thus, leading to several court cases in the state which would dictate

what would happen with women’s property rights under the Constitution. The courts would then

decide whether or not those promised rights in the Constitution would be taken from the women

or not. This being said, the court rulings would not always be in the favor of women, but in the

end the Western states would prove to be among the first in the nation to authorize women’s

suffrage.37

Keeping in mind both the Donation Land Act and Oregon’s State Constitution, it can be

seen that women in the span of ten years had gradually gained more control over their

possessions than had previously been granted under the law. There are several important

Supreme Court rulings in Oregon dealing with both the state’s Constitution and the Donation

Land Act. One of the very first cases which entertained both the Donation Land Act and the

Constitution was Brummet V. Weaver.38 The case was put forth by a Mrs. Sarah Brummet, in

1851.39 With the money Mrs. Brummet had saved through the Donation Land Act, she

purchased three horses and registered them in her name, coinciding with the Laws of the State.40

Brummet later divorced her husband, but after a time-- remarried him.41 When she remarried

36 Chused, Richard. "The Oregon Donation Act of 1850 and Nineteenth Century Federal Married Women's Property Law." Law and History Review vol. 2, no. 1 (1984): 44-78. Accessed October 5, 2016. doi:10.2307/743910. 49.

37 Custer, Joseph A. "The Three Waves of Married Women's Property Acts in the Nineteenth Century with a Focus on Mississippi, New York and Oregon." SSRN Electronic Journal: Ohio Northern University Law Review: 395-440. Accessed October 2, 2016. doi:10.2139/ssrn.2316990. 427.

38 Ibid., 427.39 Ibid., 427.40 Ibid., 427.41 Ibid., 427.

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Mr. Brummet, she did not re-register her three horses. Later, her husband sold the three horses

to a Mr. Weaver.42 Sarah Brummet decided to sue Mr. Weaver for the three horses since they

had previously been registered in her name, and she believed them to be legally hers—not her

husband’s.43 Initially the Supreme Court held that the divorce had revoked the registration of the

horses in her name, yet noting that:

“Under [the Constitution of the State of Oregon] no woman loses any pecuniary rights by marriage. Whatever property a woman has at the time of her marriage, or afterwards acquired by gift, devise, or inheritance, remains hers, until she, by her own consent, express or implied, parts with it. Without that consent she cannot be divested of her title to it, whether registered or not.”44

This apparent contradiction between the ruling and the statement from the judge was appalling,

and in 1859 there was a retrial of the case. Once the retrial had concluded the court changed its

verdict to rule in favor of Mrs. Brummet in the case. Stating: Married women had the authority

“to sell any part of her separate property and retain the purchase money as her own; or with it to

buy other property to be held by her in the same manner and for the same purpose.”45 This was a

foot in the door for women in Oregon; the case meant that they were separate from their

husbands when owning property.

While Brummet v. Weaver was a huge success for women in Oregon, the Supreme Court

in the state would not always stay consistent with the state’s Constitution, nor with former

precedent set by the court. Jemima Wheeler had planned to sell Mr. Frarey the land which she

had gained through the Donation Land Act to a Mr. Frarey.46 Unfortunately, Mr. Frarey did not

uphold his end of the contract between Mrs. Wheeler and himself.47 Mrs. Wheeler and her

42 Ibid., 427.43 Ibid., 427.44 Ibid. 427.45 Ibid. 427.46 Ibid. 428.47 Ibid. 428-429.

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husband would not take the money from Frarey and refused to sell him the land, even though

Frarey had “made permanent improvements on the land during his time.”48 The Supreme Court

ruled against Mrs. Wheeler arguing that her “contract to sell her donation claim was invalid.”49

The case was ruled in favor of Mrs. Wheeler and her husband, but stated: “At common law

married women are not only held incompetent to enter into covenants to convey their real estate,

but they are classified with those who are under disability to make any contract whatever.”50

However, in the case of Rugh v. Otttenheimer, the Supreme Court ruled in favor again of

women and their state constitutional rights.51 By 1878 Oregon would allow for another women’s

property act.52 The passing of this act would from then on allow only married women to

complete, what is considered today, as everyday transactions in both legal and monetary self

governance.53 These women were officially permitted to spend, save, or give their earned wages

as they pleased since under the act the wages were recognized as the woman’s personal

property.54 The act would also permit these women to create wills and to sue, and that “neither

spouse was liable for the other’s debts save for family and education expenses.”55

Therefore, the laws which were put into place in Oregon were not always fluent with one

another. This could be attributed to the attempt to hold onto their social norms, but all the while

48 Ibid. 428.49 Ibid. 428.50 Ibid. 429.51 Ibid. 429.52 Jensen, Kimberly. “Significant Events in the History of Oregon Women and

Citizenship,” Oregon Historical Quarterly 113, no. 3 (October 2012), doi:10.5403/oregonhistq.113.’3.0500. 500.

53 Chused, Richard H. “Late Nineteenth Century Married Women’s Property Law:’ Reception of the Early Married Women’s Property Acts by Courts and Legislatures, New York Law School. 29 Am. J. Legal Hist. 3 (1985). 33

54 Ibid., 34.55 Ibid., 34.

11

also trying to create progress. Women were undoubtedly becoming much more aware that they

were gaining rights and once they had been given and utilized it was difficult for the state to try

and take them from the women. The fluidity of these laws made it difficult to keep a consistent

list of the rights of what a woman had and did not have. While the courts were giving and taking

away rights based on how they interpreted Oregon’s Constitution, it became clear that women’s

rights would be a slow progression and a gradual shift for Oregon. After all, the equality for

Oregon women would not incur simply by legalization, but it would also have to come about

through the shifting of societal norms and sociological beliefs in the hearts and minds of the

people who voted—men who lived in Oregon and were a part of its legislature and courts.

By 1862 women had gained more freedom than owning land and property in the state of

Oregon. Oregon lawmakers passed a law in 1862 stating “women who are widows, and have

children and taxable property in the district.”56 This allowed women with children the right to

vote—something that had previously not been allowed in the state.57 Oregon would not be the

first state to allow women’s suffrage, that piece of history would belong to Wyoming in 1869.58

Both men and women in Oregon would work together to bring about women’s right to vote, the

measure would be introduced for the first time in 1884 and would be placed on the ballot five

more times in the history of Oregon.59 The right of suffrage would not be allowed to the women

of Oregon until 1912, but the process arguably began in the mid 1800s.60

56 “Woman Suffrage in Oregon,” The Oregon Encyclopedia, accessed October 8, 2016, https://oregonencyclopedia.org/articles/woman_suffrage_in_oregon/#.WFGvIP4izIU.

57 Ibid.58 “National Constitution Center - Centuries of Citizenship - Map: States Grant Women

the Right to Vote,” National Constitution Center, 2006, accessed November 12, 2016, http://constitutioncenter.org/timeline/html/cw08_12159.html.

59 “Woman Suffrage Centennial Web Exhibit,” Oregon Blue Book, 2016, accessed December 14, 2016, http://bluebook.state.or.us/facts/scenic/suffrage/suffintro.htm.

60 Ibid.

12

In Conclusion, the women who settled in the Oregon Territory experienced more

freedoms than when they had first arrived. Due to the Oregon Donation Land Act and the

Oregon Constitution the women were granted more legal property freedoms than they had

originally. While the women settlers in the west still did not have complete equal rights with

their male counterparts, these legal actions helped to procure an opportunity for women

suffragettes later in the nineteenth and twentieth century. The two components that helped lead

to the gradual emancipation of women’s daily lives and capabilities. While some of the

legislation only applied in certain scenarios, such as in order to own land under the Donation

Land Act a woman had to be married. This certainly left out women who may have come over

on the Oregon Trail alone, but it gained a firm freedom which had not been recognized for

women prior. The road toward equality was not an easy one and was not accomplished without

struggle. These women were products of their time and circumstances, and without these the

women would have had a much slower progress toward equality.

Bibliography

Chused, Richard H. "The Oregon Donation Act of 1850 and Nineteenth Century Federal Married Women's Property Law." Law and History Review vol. 2, no. 1 (1984): 44-78. Accessed October 5, 2016. doi:10.2307/743910.

Custer, Joseph A. "The Three Waves of Married Women's Property Acts in the Nineteenth Century with a Focus on Mississippi, New York and Oregon." SSRN Electronic Journal: Ohio Northern University Law Review: 395-440. Accessed October 2, 2016. doi:10.2139/ssrn.2316990.

13

Flora, Stephanie. "Emigrant's Diaries and Journals." Emigrant's Diaries and Journals. Accessed October 10, 2016. http://www.oregonpioneers.com/diaries.htm.

Jensen, Kimberly. “Significant Events in the History of Oregon Women and Citizenship.” Oregon Historical Quarterly 113, no. 3 (October 2012): 500–504. doi:10.5403/oregonhistq.113.3.0500.

"Journal of a Trip to Oregon By Abigail Jane Scott INTRODUCTION." Journal of a Trip to Oregon By Abigail Jane Scott INTRODUCTION. Accessed October 10, 2016. http://cateweb.uoregon.edu/duniway/notes/DiaryProof1.html.

Lake, Randall A. "She Flies With Her Own Wings." She Flies With Her Own Wings. February 4, 2015. Accessed October 5, 2016. http://asduniway.org/

"MtMan-List: Flour - USA - XMission." Mountain Men and the Fur Trade. Accessed October 10, 2016. https://www.bing.com/cr?

IG=A804B0BA05954FCB89E5489714AF0D4F&CID=19B78AC6B8E369840771832DB9D26837&rd=1&h=l3B6uzf0nFuH8ySy8AbIh-Wityu4J9zli57q7ILhdhI&v=1&r=https://user.xmission.com/pub/lists/hist_text/archive/hist_text.200011&p=DevEx,5038.1.

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Riddle, Margaret. "HistoryLink.org." Donation Land Claim Act, Spur to American Settlement of Oregon Territory, Takes Effect on September 27, 1850. - HistoryLink.org. August 09, 2010. Accessed December 14, 2016. http://www.historylink.org/File/9501.

Riddle, Margaret. "Thurston, Samuel (1816-1851)." Thurston, Samuel (1816-1851) - HistoryLink.org. July 25, 2010. Accessed December 14, 2016. http://www.historylink.org/File/9487.

Schlissel, Lillian. Women’s Diaries of the Westward Journey, (New York: Schocken Books Inc., 1982).

Spence, Clark C. The American West; a Source Book. New York: Crowell, 1966.

The Oregon Historical Society. “Woman Suffrage in Oregon.” Accessed October 8, 2016. https://oregonencyclopedia.org/articles/woman_suffrage_in_oregon/#.WFGvIP4izIU.

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“Woman Suffrage Centennial Web Exhibit.” 2016. Accessed December 14, 2016. http://bluebook.state.or.us/facts/scenic/suffrage/suffintro.htm.